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Nysba Spring 2003 | Volume 14 |No NYSBA SPRING 2003 | VOLUME 14 |NO. 1 Entertainment, Arts and Sports Law Journal A publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association Remarks from the Chair The year 2003 picked up right Sherman & Flynn; Michael Mellis of Major League where 2002 left off for the Enter- Baseball Advanced Media; and Peter Smith of Hogan & tainment, Arts and Sports Law Hartson. Indeed, the timeliness of their discussion and Section with a fabulous Annual the need for adequate protections on digital media could Meeting. Thanks to the hard not have been underscored more by the fact that less work of Kenny Nick and Ayala than 24 hours after the Annual Meeting program, The Deutsch, we hosted a program New York Times ran an article on the front page of its entitled “Practicing in the Gray Business Section revealing that Major League Baseball Areas of Intellectual Property intends to experiment with the Internet distribution of Law: Creative Resolutions to Pro- live video from its games this summer. tecting Your Digital Rights.” For our members who were unable to attend, we are In addition to keynote speaker Bernard Sorkin, pleased once again to offer a transcript of our Annual Senior Counsel of AOL Time Warner, our members were Meeting in this edition. treated to the various perspectives of George Cooke of Our Friday program was not our only event at this Home Box Office; Jonathan Frankel of Swidler Berlin year’s Annual Meeting. We accepted the Intellectual Shereff Friedman; Jeffrey Johnson of Pryor Cashman Inside “Harry Potter and the Order of the Court” Pennsylvania Woman Sanctioned for Bringing Bad Faith Editor’s Note ..........................................................................................3 Infringement Claims ......................................................................58 Law Student Initiative Winners............................................................4 (Jessie Beeber and Edward Rosenthal) The Phil Cowan Memorial Scholarship ..............................................5 Star Struck—What to Do When “It” Hits the Fan for Your EASL Annual Meeting Keynote Address............................................6 Celebrity Client................................................................................60 (Bernard Sorkin) (Lisa M. Fantino) EASL Section Annual Meeting............................................................11 Lawyer Assistance Program Can Help Attorneys with Alcoholism and Substance Abuse Problems......................64 Junior Prom or NBA? A Legal Analysis of LeBron James’ Failed Quest to Enter the NBA Draft Prior to Graduating The Need for Paranoia in Drafting Entertainment Contracts........65 from High School ............................................................................38 (Michael L. Baroni) (Christopher B. Abbott) Any “Copyright” for Litigants?..........................................................68 Defining Artists’ Rights and Alternatives: (Alan J. Hartnick) Ownership of the Creative Message ............................................48 The New German Law on Copyright Contracts— (Damien Granderson) Is German Law Going Socialist? ..................................................70 Whose Right Is It Anyway? Captain America Smashes (Alexander R. Klett) Through to Preserve an Author’s Right to Terminate Pro Bono Update ..................................................................................74 a Copyright Grant ..........................................................................53 (Elisabeth K. Wolfe) (Ross J. Charap and Faith Wu) Upcoming VLA Programs ..................................................................77 Property Law Section’s invitation to co-host its after- I want to welcome a new member to our Executive noon program earlier that week, in which Jay Flemma Committee and congratulate a current member on her took a lead role by organizing two panels. The first was new position. First, our newest member is our CLE a review of the law and policy of the Supreme Court’s Chair, Cameron Myler. Cameron, a four-time U.S. Win- decision in Eldred v. Ashcroft,1 moderated by Jay Kogan, ter Olympian, not only plans to assist our Section in Chair of our Literary Works and Related Rights Com- ensuring that our members receive CLE credit for as mittee. The second was a discussion of the ramifications many of our programs as possible, but is also looking of the recent district court decision in the Tiger Woods forward to working with Ayala, who is Chair of the case against sports artist Rick Rush, concerning Woods’ Committee on Sports, to host programs of interest to rights of publicity and privacy. members who practice in that field. Incidentally, as you may notice from the prior sentence, we have renamed We also co-sponsored a panel discussion and cock- the Committee on Professional Sports to reflect the fact tail reception geared toward introducing young lawyers that many of our members practice in, and many of our to the industry, and provided career advice to those programs relate to, fields other than professional sports. aspiring to make a career in entertainment, arts or sports law. My predecessor, Judith Bresler, spoke on Rosemarie Tully, a member of our Executive Com- that panel, which was a huge success. Our Section is mittee from the 10th District for the past several years, committed to the career development of newer attor- has succeeded Elisabeth Wolfe as Membership Chair. neys, and we hope that those of you who are looking to Elisabeth has made great strides over the past year in gain experience will take advantage of our various pro- reaching out to members of the bar, educating them on grams, receptions and other opportunities to gain con- the benefits our Section offers and, as a result, growing nections, knowledge and experience, such as at our our membership. We look forward to continue growth VLA clinics. under Rosemarie’s guidance. By the time you will have read this, our spring con- With many upcoming events planned—including ference—scheduled for March 28-29 at Doral Arrow- programs, another VLA clinic and other matters of wood Resort in Rye Brook, New York—will have interest such as the Phil Cowan Memorial Scholar- passed so I will wait until the next issue to provide a ship—members should make it a regular practice to report on that. However, as I write this column, I would check our Web site, http://www.nyeasl.org, for news be remiss if I did not express my excitement about the and information. conference and my appreciation for the efforts of Jay Flemma and Kenny Nick in putting together what is Jeffrey A. Rosenthal shaping up to be a true blockbuster event. Endnote 1. ___ U.S. ___, 123 S. Ct. 769 (2003). GET CLE CREDIT FOR SUBMITTING ARTICLES If you have written an article, or have an idea for one, please contact Entertainment, Arts and Sports Law Journal Editor Elissa D. Hecker, Esq. The Harry Fox Agency, Inc. 711 3rd Avenue New York, NY 10017 [email protected] Articles should be submitted on a 3-1/2" floppy disk, preferably in Microsoft Word or WordPerfect, along with a printed original and biographical information. 2 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2003 | Vol. 14 | No. 1 Editor’s Note This issue of the Journal We are also fortunate to have submissions by attor- is launching our Law Stu- neys who were involved with trying and winning the dent Initiative, which is cases about which they write. The first involves an designed to bridge the gap interpretation by the Second Circuit on behalf of cre- between law students and ators of copyrighted works, involving termination the entertainment, arts and rights, contractual agreements and works for hire. The sports law communities and second concerns J.K. Rowling and Scholastic, Inc. in shed light on students’ their defense of the Harry Potter books against an diverse perspectives in these author who fabricated evidence in an attempt to prove practice areas. We were very claims of copyright and trademark infringement. fortunate to have received As you will see from Elisabeth’s Pro Bono Update, quite a number of quality the Pro Bono Committee has been very active. We had submissions, and have our second clinic with VLA on February 12th, which selected two authors as our first published winners. was a great success. Elisabeth will be sending Pro Bono Christopher Abbott, a second-year law student at St. Updates via e-mail to all EASL Section members during John’s University School of Law, writes about LeBron the course of the year, which will outline the involve- James’ failed quest to enter the NBA draft prior to grad- ments of the Committee and how each member can uating from high school. Damien Granderson, a third- participate. We also have an article featuring VLA’s pro- year law student at Albany Law School of Union Uni- grams, as an informational resource for EASL Section versity, has submitted an article about defining artists’ members. rights. As a result of their high-quality submissions, both of these authors will receive a free membership to Finally, please be advised that authors can now get the EASL Section next year, and an opportunity to reach CLE credit from having an article published in the out to EASL Section members with their talent. EASL Journal. To submit an article or letter to the Edi- tor, please contact me at [email protected]. The This issue of the Journal also features what has next deadline is Friday, May 30, 2003. become an annual tradition, the publication of the tran- script
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